A court-martial (plural courts-martial) is a military court that determines punishments for members of the military subject to military law. Virtually all militaries maintain a court-martial system to try cases in which a breakdown of military discipline may have occurred. In addition, courts-martial may be used to try enemy prisoners of war (POW) for war crimes. The Geneva Conventions require that POWs who are on trial for war crimes be subject to the same procedures as would be the holding of the army's own soldiers.

Most navies have a standard court-martial which convenes whenever a ship is lost; this does not necessarily mean that the captain is suspected of wrongdoing, but merely that the circumstances surrounding the loss of the ship would be made part of the official record. Many ship captains will actually insist on a court-martial in such circumstances. As a military formal assembly or a tribunal possessing military jurisdiction, a court-martial creates the conduit wherein military actions in conflict and disharmony are scrutinized and justice may be imparted in ways to bring harmony and cooperation within the armed forces.

Background of the court-martial

Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the Greeks and Romans had military justice codes, although no written versions of them remain. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.

International

The greatest influence on the modern court-martial comes from the Court of Chivalry in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and concepts of due process. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War. The early British Articles of War reflected a concern for due process and panel member composition.

England

In thirteenth century England, Edward I created a statute whereby the royal prerogative had the power to command the military forces of the nation as well as to regulate and discipline the army. Thus, any military offense was in the royal jurisdiction; however, any civil offense was coordinated with the Court of the Constable and Marshal. Military rules and ordinances were issued by the King which formed the basis of a code of military law.

United States

From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.

Personnel

A panel of officers sit in judgment at a court martial, while the accused is usually represented by an officer, normally a military lawyer.

Crimes punishable by a court-martial

Courts martial have the authority to try a wide range of military offenses, many of which closely resemble civilian crimes like fraud, theft, or perjury. Others, like desertion and mutiny were purely military crimes. Punishments for military offenses ranged from fines and imprisonment to execution.

Military offenses are defined in the British Army Act for members of the British Military and the Canadian armed forces. For members of the United States they are covered by the Manual For Courts Martial. These offenses and their corresponding punishments and instructions on how to run a court martial, are explained in detail based on each country and/or service.

International courts-martial

United States

The Uniform Code of Military Justice (UCMJ) defines military offenses and trial procedures for courts-martial.

As in all United States criminal courts, courts-martial are adversarial proceedings. Military lawyers of the Judge Advocate General's corps (JAG) representing the government and appointed military lawyers representing the accused present and argue relevant facts, legal aspects, and theories before a military judge. The accused can also hire civilian representation at his or her own expense. Defendants are presumed innocent until proven guilty, according considerable legal protections, including the right to appeal.

The lawyers must follow military rules of procedure and evidence as allowed by the presiding judge. During these trial proceedings, the military judge decides questions of law. The accused may choose to be tried by the military judge alone or by a jury. A court-martial jury is called a panel of members. This panel decides questions of fact as allowed by law, unless the accused chooses to be tried by the judge alone, in which case the judge will resolve questions of law and questions of fact. Both the court-martial members and the military judge are members of the armed forces. Members of a court-martial are commissioned officers, unless the accused is a warrant officer or enlisted member and requests that the membership reflect their position by including warrant or enlisted members. Only a court-martial can determine innocence or guilt.

Three levels of courts-martial can be convened depending on the severity of the offense(s):

Summary, which can confine junior enlisted to up to 30 days. Officers are not tried at summary courts-martial.

Special, which, depending on the charges, can confine an accused up to a year and give a bad-conduct discharge to enlisted.

General, which, depending on the charges, can sentence an accused to death or life imprisonment, and give a bad-conduct or dishonorable discharge or a dismissal to officers.

General and special court-martial convictions are equivalent to a federal court conviction. Military specific crimes (such as disobeying orders, absence offenses (AWOL)) do not translate into civilian convictions and thus will not show up on certain civilian background checks. Convictions may have to be reported for bank loans, job applications, and so forth. Some other convictions in the military are considered felonies, but this depends on the law of the state in which the convicted works or resides. For most states, if a crime carries a maximum punishment of more than a year it is considered a felony, unless it is a military specific crime. Thus, disobeying a lawful general order (an order issued by a general officer) even though it carries a two year maximum punishment would not be considered a felony. Military offenders that are convicted of violent sexual offenses or sexual offenses against minors will be required to register as sex offenders in most states.

Unlike federal courts established under Article III of the U.S. Constitution, a court-martial is established under Article I and does not exist until its creation is ordered by a commanding officer. Such officers are called court-martial convening authorities. The legally operative document that a convening authority uses to create a court-martial is called a court-martial convening order.

General courts-martial require an investigating officer, with at least the rank of captain (naval lieutenant), to hold a hearing to review government evidence which outlines the elements of the alleged crime. These investigations are referred to as Article 32 hearings because they are described in article 32 of the Uniform Code of Military Justice (UCMJ). In the Air Force and Navy, the Investigating Officer is usually a JAG officer; in the Army it is usually a non-lawyer. The accused is present and has an attorney to examine evidence and testimony. The Article 32 hearing is a major discovery tool for the defense. The investigating officer then sends the report with recommendations to the convening authority, who may then refer the case for court-martial.

Convening authorities may decide on actions other than court-martial, especially when the government case is weak. The charges may be dismissed or disposed of at a lower level, and include actions such as administrative reprimands, summary courts-martial, nonjudicial punishment, or administrative separation.

In most courts-martial the accused pleads guilty to at least some of the charges. Even in most cases where the accused pleads not guilty, the accused is convicted of at least some of the charges.

Courts-martial have universal jurisdiction over active duty military personnel, subject to the Uniform Code of Military Justice. This means that no matter where a service member is in the world, if they are on active duty, they can be tried by a court-martial. Under new laws to deal with contractors operating abroad with the armed forces, some civilians are also subject to the Uniform Code of Military Justice.

The appeal process is different from civilian courts. If a service member is court-martialed and they feel that the result was unjust, then the service member can submit their case to the convening authority, which is the officer (usually a general) that originally had the service member court-martialed. This is similar to asking a civilian governor for clemency or a pardon. After clemency requests, the service member may submit their case for review to the Court of Criminal Appeal for their branch.

Conviction is special and general courts-martial can be appealed to higher authorities, such as the United States Court of Appeals for the Armed Forces and the Supreme Court of the United States. As the final last resort, the convicted service member can ask for executive clemency also known as a "reprieve," or a pardon from the President.

United Kingdom

In the United Kingdom, summary offenses are dealt with by the accused's commanding officer. The commanding officer acts as a magistrate, but the accused may only be admonished, reprimanded, fined, denied pay, have his/her privileges restricted, or be detained for up to 28 days.

Serious offenses are considered by a court-martial. The courts also consider cases when the accused is an officer or holds rank above that of his commanding officer, or when the accused demands such a trial. Prosecution is controlled not by the military, but by a Prosecuting Authority that is independent of the chain of command. The defendant's lawyer, furthermore, may be a civilian, and costs may be borne by the military.

There are two types of courts-martial: the District Court-Martial (DCM) which may punish the accused with up to two years imprisonment, and the General Court-Martial (GCM) which may punish the accused with up to life imprisonment if the offense is serious enough. Officers convicted at a Court-Martial can be dismissed, with especially serious offenders dismissed in disgrace and banned from serving Her Majesty in any capacity for life.

The District Court-Martial is composed of three members and the General Court-Martial of five members; in each case, one member is designated the President. The members may be warrant officers or commissioned officers. The members of the court judge the facts of the case, like a jury.

They may also determine the sentence, but in the civilian courts, that power is granted only to the judge. The court is presided over by a Judge Advocate who is normally a civilian judge. The present Judge-Advocate General is a Circuit Judge and the other Judge Advocates are Barristers in practice, who serve as Judge Advocates only on a part time basis. This is like a Recorder in the Crown Court. The presiding judge may instruct the members of the Court on questions of law and sentencing.

Appeal lies to the Courts-Martial Appeals Court, which may overturn a conviction or reduce a sentence. Thereafter, appeal lies to the highest court of the United Kingdom, the House of Lords (the case, like all others before the House, is only heard by a committee of judges known as Law Lords).

During World War I there were a further two Courts-Martial. The Regimental Court-Martial (RCM), which rarely sat, and the Field General Court-Martial (FGCM). The FGCM consisted of three officers, one of them normally a Major who acted as president.

India

The Indian army is one of the armed forces of India and has responsibility for land-based military operations. The Indian Army has four kinds of Court Martial—General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM), and Summary Court Martial (SCM). According to the Army act, army courts can try personnel for all kinds of offenses except for murder and rape of a civilian, which are primarily tried by a civil court. The Judge Advocate General's Department is in the Institute of Military Law in Kamptee, Nagpur.

Germany

German military courts-martial differ from the United States, England, India, and other countries. The German military delegate the trial and punishment of military offenses to a tribunal of non-military or civilian personnel. Yet, there were deviations. During World War II, German soldiers were subjected to discipline by their superior officers who were empowered to shoot to kill any deserter on sight. During this time, courts-martial rendered harsh sentences on offenders since loyalty was deemed most important to ensure cohesion in the unit.

Famous courts-martial

Mutiny on the Bounty

The mutineers turning Lt Bligh and some of the officers and crew adrift from HMAV Bounty, 29 April 1789. By Robert Dodd

The mutiny on the Bounty was a mutiny aboard a British Royal Navy ship on April 28, 1789. The mutiny was led by Fletcher Christian against the captain, William Bligh. Bligh was then cast adrift in a small open boat with 18 loyal men. Lieutenant Bligh returned to England and reported the mutiny to the Admiralty on March 15, 1790. HMS Pandora, under the command of Captain Edward Edwards, was dispatched to search for Bounty and the mutineers. Four of the men from the Bounty came on board Pandora soon after its arrival at the Pitcairn Islands, and ten more were arrested within a few weeks.

After being repatriated to England, the ten surviving prisoners were tried by a naval court. During the trial, great importance was attached to which men had been seen to be holding weapons during the critical moments of the mutiny, as under the Articles of War, failure to act when able to prevent a mutiny was considered no different from being an active mutineer. In the judgment delivered on September 18, 1792 four men whom Bligh had designated as innocent were acquitted. Two were found guilty, but pardoned; one of these was Peter Heywood, who later rose to the rank of captain himself. Another was reprieved due to a legal technicality, and later also received a pardon. The other three men were convicted and hanged. In other trials, both Bligh and Edwards were court-martialed for the loss of their ships (an automatic proceeding under British naval law, and not indicative of any particular suspicion of guilt), and both were acquitted.

My Lai massacre

The My Lai Massacre was the mass murder of several hundred unarmed Vietnamese civilians, mostly women and children, conducted by U.S. Army forces on March 16, 1968, in the hamlets of My Lai and My Khe during the Vietnam War. When details of the event were finally made known, court martial proceedings were initiated.

After a ten-month-long trial, in which he claimed that he was following orders from Captain Ernest Medina, his commanding officer, Lieutenant William Calley was convicted of premeditated murder for ordering the shootings. He was initially sentenced to life in prison. However, President Richard Nixon made the controversial decision to have Calley released from prison, pending appeal of his sentence, which was later adjusted so that he eventually served 4½ months in a military prison at Fort Leavenworth, Kansas.

Most of the enlisted men who were involved in the events at My Lai had already left military service, and were thus legally exempt from prosecution. In the end, of the 26 men initially charged, Lt. Calley's was the only conviction.

References

Alexander, Caroline. 2003. The Bounty: The True Story of the Mutiny on the Bounty. Viking Adult. ISBN 9780670031337

Belknap, Michael R. The Vietnam War on trial: the My Lai Massacre and the court-martial of Lieutenant Calley. 2002. Lawrence, KS: University Press of Kansas. ISBN 0700612114

Philos, Conrad D. 1950. Handbook of court-martial law; digest of opinions on military justice with full text of the Uniform Code of Military Justice (1950) and Parallel reference table. Washington: National Law Book Co. OCLC 7699530

Rehnquist, William H. 1998. All the laws but one: civil liberties in wartime. New York: Knopf. ISBN 0679446613

United States Navy Dept. Compilation of court-martial orders for the years 1916-1937. Washington: USGPO; William S. Hein & Co., 1940-1941. OCLC 52996718

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